Remix and Cultural Production

Hemphill, C. Scott, Suk, Jeannie, Stanford Law Review

We are pleased that our Article, The Law, Culture, and Economics of Fashion, (1) attracted a long and thoughtful response from two distinguished participants who have been so influential in this debate. The simultaneous desire for differentiation and flocking is alive and well. In their response, The Piracy Paradox Revisited, Kal Raustiala and Christopher Sprigman (RS) point out agreement on key issues, and simultaneously stress disagreement with aspects of our model, adhere to their "induced obsolescence" account of fashion trends, which we reject, and raise doubts about our policy proposal. (2) The exchange embodies the dynamics that are pervasively in tension, in creative--including academic--pursuits.

Our differences in analysis are quite fundamental. First, we identify a key distinction between close copying and remixing, and they reject the importance of such a distinction. We think the distinction is important because of the differential effects of close copies and interpretations on innovation, which we discuss at length in our article. The lumping of the two activities together under the label of "piracy" has led to confusion here and elsewhere in intellectual property. Our purpose in emphasizing the line between the two is of course not to map how current copyright law treats copying, but rather to consider what distinction would make most sense in the fashion design context, an area that current copyright law does not reach.

Highlighting the difference between close copying and remixing also helps to clarify the contours and stakes of the policy debate in other industries. In our article, we noted Lawrence Lessig's frustration that his promotion of a robust remix right in his book Remix (3) has been taken, wrongly, as a defense of piracy. (4) A recent interview on The Colbert Report makes the point vividly. Stephen Colbert asked Lessig, "You say our copyright laws are turning our kids into criminals, because they're keeping kids from doing all the remixing they want of pre-existing art and copywritten material, right? Isn't that like saying that arson laws are turning our kids into pyromaniacs? They're breaking the law!" (5) In response, Lessig pointed to the recording industry's "failed war" against teenage file-sharers. (6)

The exchange left inexplicit a crucial point: the "war" against teenagers is not properly against remixing but against file-sharing of exact copies. (7) Exact copying--not the remixing that current copyright law also considers infringement--is one reason the Virgin Megastore in Times Square has closed. (It is being replaced by a Forever 21. (8)) Similarly in fashion design, we argue, the robust remix practice of which fashion innovation consists should not be considered "piracy" because it is not what threatens innovation. Close copying is. The fact that fashion designers currently innovate tells us no more about whether a different regime would be preferable than the observation that even in the face of file-sharing, musicians are still producing music. We disagree with RS's claim that in fashion, unlike other creative arts, "piracy substitutes for functional innovation," and that "[p]iracy is the fashion industry's equivalent of the new feature on a cell phone." (9) Fashion piracy is like other types of piracy of creative products, such as file-sharing or photocopying of copyrighted material. Fashion design's equivalent of functional innovation is, well, design innovation, which pulls consumers to the new.

Second, we see the dynamics of fashion trends much differently. RS's induced obsolescence account is moored to a status account of fashion. But fashion is a complex phenomenon that is not limited to status-conferral and the leader-follower process to which RS restrict their attention. (10) Status signaling is a narrow subset of what happens from the formation to the demise of fashion trends. Our account of fashion broadens the cultural frame to take account of how trends reflect people's desire to move together with others while at the same time expressing their individuality within limits. …

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